1. In reviewing a challenge under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed.
2d 69, 106 S. Ct.
1712 (1986), concerning the State's use of a peremptory challenge, the applicable standard
of review is whether the trial court abused its discretion in determining if the challenged
strikes were constitutionally permissible.

2. Judicial discretion is abused only when no reasonable person would take the view
adopted
by the trial court. The defendant bears the burden of establishing such an abuse of discretion.

3. The Batson analysis involves a three-step process. First, the defendant must
make a prima
facie showing that the prosecutor has exercised peremptory challenges on the basis of race.
Second, if the requisite showing has been made, the burden shifts to the prosecutor to
articulate a race-neutral explanation for striking the jurors in question. In this second step,
the prosecutor is only required to put forth a facially valid reason for exercising a peremptory
strike. Finally, the trial court must determine whether the defendant has carried his or her
burden of proving purposeful discrimination.

4. The standard of review of the first step of the Batson three-step process
– the prima facie
showing on the basis of race – is a question of legal sufficiency subject to plenary review.

5. The standard of review of the second step of the Batson three-step process
does not demand
a prosecutor's explanation that is persuasive, or even plausible, but merely facially valid.
Further, unless a discriminatory intent is inherent in the prosecutor's explanation, the reason
offered will be deemed race neutral. Accordingly, the ultimate burden of persuasion rests
with, and never shifts from, the opponent of the strike.

6. The standard of review of the third step of the Batson three-step process
– the trial court's
decision on the ultimate question of whether the defendant has carried the burden of proving
purposeful discrimination – is greatly deferential because the determination is factual.

7. In order to raise a Batson challenge based upon the striking of Hispanic
venirepersons, the
defendant need not establish that he or she is a member of a cognizable minority group
because the focus is on the individual rights of jury members not to be excluded on the basis
of race or gender.

8. The burden of creating a record of relevant facts to support a Batson
challenge belongs to the
defendant.

9. A venireperson's statements that her or she is uncomfortable with his or her ability to
explain
his or her opinions to others because of language barriers is a sufficiently race-neutral ground
for his or her exclusion as a juror.

10. In reviewing a trial court's decision regarding the suppression of a confession, an
appellate
court reviews the factual underpinnings of the decision by a substantial competent evidence
standard and the ultimate legal conclusion by a de novo standard.

11. In determining whether a confession is voluntary, a court is to look at the totality
of the
circumstances, including the duration and manner of the interrogation; the ability of the
accused on request to communicate with the outside world; the accused's age, intellect,
background and fluency in the English language; and the fairness of the officers in
conducting the interrogation.

12. The essential inquiry in determining the voluntariness of an accused's statement is
whether
the statement was the product of the free and independent will of the accused.

13. The purpose behind K.S.A. 75-4351(e) is to ensure that there is clear
communication
between one who is in custody and the officers who are questioning him. The statute does
not state a rule of evidence. Whether or not an interpreter is appointed and is present at the
taking of the statement, the trial court must still determine whether an in-custody statement
was freely, voluntarily, and knowingly given, with knowledge of the Miranda rights.
That
determination must be based upon the totality of the circumstances.

14. Under the totality of the circumstances in this case, including the absence of an
interpreter
described in K.S.A. 75-4351(e), as a matter of law the defendant's statements were made
freely, voluntarily, knowingly, and understandingly with full knowledge of his Miranda
rights.

15. Multiplicity is the charging of a single offense in several counts of a complaint or
information. The principal danger of multiplicity is that it creates the potential for multiple
punishments for a single offense. Multiple punishments for a single offense are prohibited
by the Double Jeopardy Clause of the Fifth Amendment and by §10 of the Kansas
Constitution Bill of Rights.

16. Under the facts of this case, because only one person was relieved of items of
property
belonging to different persons, it is multiplicitous to convict of more than one count of
aggravated robbery.

17. When the sufficiency of the evidence is challenged in a criminal case, the standard
of review
is whether, after review of all the evidence, viewed in the light most favorable to the
prosecution, the appellate court is convinced that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. An appellate court does not reweigh evidence,
pass on the credibility of witnesses, or resolve conflicts in the evidence.

18. The actions of one robber can be used to prove the elements of the crime against
an
accomplice.

19. The State need not locate stolen items to prove that they were stolen by a
defendant. Under
an appellate court standard of review, it is sufficient if there was evidence linking the
defendant to the crime and there was property missing from the victim.

20. Under the facts of this case, defendant's convictions of conspiracy to commit
kidnapping and
conspiracy to commit aggravated burglary are multiplicitous because there was only a single
continuing conspiracy, i.e., one criminal agreement, to rob the victims in their home.

21. Under the facts of this case, defendant's convictions of aggravated kidnapping and
felony
murder, based upon the underlying felony of aggravated burglary, are not multiplicitous.

22. When a defendant has requested a lesser included instruction at trial, the standard
of review
for failing to so instruct is whether the evidence, when viewed in the light most favorable to
the defendant, supported the instruction. The instruction need not have been given if the
evidence would not have permitted a rational factfinder to find the defendant guilty beyond
a reasonable doubt of the lesser included offense.

23. Under Kansas law a victim's escape does not mean that the act of kidnapping was
not
completed.

24. As to crimes committed on or after July 1, 1995, claims of partiality, prejudice,
oppression,
or corrupt motive do not raise jurisdictional grounds sufficient to allow an appeal of a
presumptive sentence. K.S.A. 21-4721(e)(1).

Appeal from Finney district court; PHILIP C. VIEUX, judge. Opinion filed June 16,
2006. Affirmed in part
and reversed in part.

Ricklin R. Pierce, of Ricklin R. Pierce, Chartered, of Garden City, argued the
cause and was on the brief for
appellant.

Brian R. Sherwood, assistant county attorney, argued the cause, and
John P. Wheeler, Jr., and Phill Kline,
attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.: For Ngan Pham's involvement in actions against the Giang Nguyen family on
November 11, 2002, he was convicted of first-degree felony murder, aggravated kidnapping, five
counts of kidnapping, six counts of aggravated robbery, aggravated burglary, conspiracy to
commit
kidnapping, and conspiracy to commit aggravated burglary. He was sentenced to a life sentence
plus
1,306 months, the maximum sentence allowed under Kansas law. This court hears his appeal
pursuant to K.S.A. 22-3601(b)(1) (maximum sentence of life imprisonment imposed). Our
opinion
concerning one of his coconspirators, Giang Nguyen, who was tried separately, is found in
State v.
Nguyen, 281 Kan. __, 133 P.3d 1259 (2006).

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the district court err in denying Pham's Batson challenge at the
conclusion of voir
dire? No.

2. Did the district court err in admitting into evidence Pham's statements to law
enforcement
made without being provided an interpreter? No.

3. Did the district court err in admitting into evidence certain photographs? No.

4. Did the district court err in denying Pham's motion for judgment of acquittal as to the
six
counts of aggravated robbery because they were multiplicitous? Yes on five of the counts.

7. Did the district court err in denying Pham's request for jury instructions on attempted
aggravated kidnapping and attempted kidnapping? No.

8. Was Pham's sentence excessive? No.

Accordingly, we affirm in part, reverse in part, and remand for resentencing.

FACTS

Giang Nguyen and his wife, Bau Tran, lived at 522 Colony in Garden City with their two
daughters, Hong and Ann, and their two sons, Thai and Thang. Early in the morning on
November
11, 2002, Thai opened the garage door to start his car to go to work. As he stepped out of the
garage
to walk toward the car, a man came up next to him out of the dark, pointed a gun to his head, and
said, "Motherfucker, stand still. I'm going to shoot you." The man pushed Thai back to the
garage
and made him lie down with his hands over his head. The man put his foot on Thai's back. He
then
told Thai to get up, and as Thai was entering his house, several men pushed him flat on his
stomach
and tied his hands behind his back.

From the kitchen, Thai's sister Ann had heard him yell, so she opened the garage door to
look
for him. Two men approached her and pushed her back into the house. All three men wore
black
masks and yellow gloves similar to gloves used at IBP, a local meat-packing plant where Ann
had
worked. Each one pointed a gun at her. They told Ann and Thang to lie down on the living
room
floor. Giang Nguyen, the father, then came out of the bedroom, and the masked gunmen forced
him
to lie down next to the couch in the living room.

Thai's other sister, Hong, was in her bathroom when she heard a voice say, "Lay down.
Lay
down." She opened her bedroom door to find someone standing immediately outside. That
masked
man told her to hold her hands up, then pointed his gun at her forehead and took her to the living
room. By his voice and eyes, she eventually recognized him as a coworker at IBP who, though
unrelated to her father, was also named Giang Nguyen.

Thai's mother, Bau Tran, was still asleep in her bedroom when one of the masked
gunmen
pulled the covers off her bed, pointed his gun at her head, and said, "Get up." He led her into the
living room to join the other five members of the Nguyen family lying on the floor. After one of
the
masked gunmen – whom witnesses said was not Giang Nguyen – tied up the
family with white strips
of cloth, he said to another gunman, "Nam, watch them. If they move, shoot them all." He then
left
the room, leaving "Nam" alone with the family.

Thang looked up from the floor and said, "Nam, what are you doing?" His sister Hong
also
looked up and said, "Nam, whatever you want to take, take it." Their sister Ann then looked up
and
recognized the man as Nam, one of her former coworkers at IBP. Ann said, "Nam, let us go."

Thang then made a break for the kitchen, and Nam followed him. Ann got up, opened the
front door, and ran out, with Hong following her. The two daughters ran to a neighbor's house
and
called the police.

While Thai was still lying in the living room, he heard two gunshots. Bau Tran, Thang's
mother, then heard Thang say, "My God, I'm dying." The masked gunmen stepped on Thai's
back
and ran out of the house through the garage door. After looking up, Thai saw them get into a red
car
and leave. He loosened his hands and ran to the kitchen to call the police, and then saw his
brother
Thang lying down in the kitchen with his hands over his face. His mother, Bau Tran, joined
them.

Thang had been shot twice. One shot, which was almost straight downward, entered the
side
of his left chest, and eventually lodged in his right thigh, perforating his lung and other organs.
The
other shot, which was slightly downward, entered Thang's left back and exited his left chest, then
entered and exited his left forearm.

When the police arrived, Bau Tran directed them to her son Thang and pointed out the
strips
of white cloth the gunmen had used to tie up the family. Because the police told her to sit in the
garage, Bau Tran went to her bedroom to get a coat and noticed that her dresser drawer was open.
Inside the drawer, her black purse was unzipped and two pieces of jewelry were missing. One of
the
pieces of jewelry was a necklace with a 1 carat diamond pendant worth $600 belonging to her
daughter Ann; the other was a diamond bracelet worth $5,000 belonging to her other daughter
Hong.
The daughters had worn the jewelry to a party the night before and given it to their mother for
safekeeping when they returned home.

Garden City Police collected two live rounds of 9 mm ammunition, as well as two 9 mm
shell
casings in the Nguyen home. They also found six white pieces of cloth tied in knots matching
the
description of the victims' bindings. Acting on a tip, later that morning police obtained a
surveillance video from a Kwik Shop in Garden City which showed three Asian males later
identified as Nam Nguyen, his brother Giang Nguyen, and defendant Ngan Pham entering the
store
at 4:16:38 a.m. on November 11, 2002.

David Falletti, a KBI special agent, was assigned to look for Ngan Pham. On November
12,
the day after the home intrusion, Falletti and Jason Ott, a Liberal detective, found Pham at Tan
Tan's
Pool Hall in Liberal. Pham was taken to the Liberal Police Department, where Falletti
interviewed
him.

Prior to conducting the formal interview, Falletti asked Pham if he understood English.
Pham replied that he did. When Falletti asked if Pham wanted an interpreter, Pham replied that
he
did not need one. Falletti provided Miranda warnings by having Pham read them
aloud from the
card to him.

The interview revealed that Pham had been in the United States for approximately 25
years.
He owned a blue 1991 Pontiac Firebird, which Falletti located at Tan Tan's Pool Hall. Pham
initially
indicated that he did not know about the incident. Later, he agreed to speak with Falletti about
what
he knew. He told Falletti that he knew Nam Nguyen and Giang Nguyen, who by then had been
identified as two of the intruders. Pham explained that he worked at the Farmland beef packing
plant
in Liberal and Nam and Giang had worked there as well.

According to Pham, around 4 p.m. on November 10, he, Nam, and Giang Nguyen met in
the
parking lot of the Tan Tan Pool Hall. They discussed obtaining money from a family in Garden
City.
Pham did not know the family, but Nam had worked with members of the family at IBP and had
been at their house before. After discussing what they were going to do, Pham went home.

Pham told Falletti that around 2 a.m. on November 11, he picked up the Nguyen brothers
in
Liberal in his blue Firebird to go to Garden City. When they arrived, they stopped at a "Quik
Trip"
(Kwik Shop) and purchased some food items. Pham identified Giang and Nam Nguyen and
himself
in photographs taken from the Kwik Shop surveillance video. He explained that after driving
around
Garden City for awhile, they parked in front of the house at 522 Colony between 3 and 4 a.m.
Their
plan was to steal money, because Pham had been out of a job for a few weeks and was broke.
Pham
stated that he, Nam, and Giang sat in front of the house for a short amount of time. He conceived
the idea of using a knife to cut a white T-shirt into several strips for tying up family members,
which
Nam did.

According to Pham, he carried a gray .45 caliber pistol, Giang carried a .45 caliber pistol
that
Pham had given him, and Nam carried a 9 mm pistol of unknown origin. All three men wore
black
ski masks. As they walked up to the house together, the garage door opened and an Asian male
came
out. Pham took the man by the arm at gunpoint and told him, "Let's go." The man seemed very
scared. Then Pham forced the man to lie down inside the house near the couch and tied his
hands
with one of the T-shirt strips while Nam stood guard. Giang went to the bedrooms and brought
people out to the living room, where Pham tied their hands and made them lie on the floor.

Pham told Falletti that after all the family members were tied up, Nam stood guard over
them
while Pham and Giang went to a back bedroom to look for money. On a rough diagram Falletti
had
drawn, Pham showed Falletti where the living room and the bedroom were. Falletti identified
the
bedroom as belonging to Ann and Hong. According to Pham, he had been in the bedroom 4 or 5
minutes when he heard gunfire. He ran straight to his car, gave his keys to Giang, and the three
men
rode to Wichita. The next morning he returned to Liberal.

Numerous times during the interview Pham stated that the purpose of the episode was to
get
money; he knew nothing about jewelry taken from the residence. He also said that no one had
intended any shooting.

Pham told Falletti that the guns he and Giang had used and the ski masks were in his car.
After the interview, Falletti obtained a search warrant for Pham's car and executed it on the
afternoon
of November 12. He found a tan-colored coat lying in the back of the car, similar to a brown
coat
Pham had been wearing in the Kwik Shop photographs. The search also revealed a fully loaded
Ruger .45 caliber pistol, a fully loaded Smith and Wesson 9 mm pistol, a fully loaded Smith and
Wesson .40 caliber pistol, an FEC .45 caliber pistol, and a loaded .22 caliber RG Industries
revolver.
None of the handguns was determined to be the murder weapon. The search also revealed four
black
ski masks, numerous yellow IBP-style gloves, and water bottles like those purchased at a
convenience store.

Pham later filed a motion to suppress this videotaped statement, which the district court
denied after an evidentiary hearing. The tape was played for the jury at trial.

The jury found Pham guilty of:

1. First-degree felony murder of Thang whose death occurred during the commission
of an inherently dangerous felony, i.e., aggravated burglary;

2. Aggravated kidnapping of Thang, who was shot during a confinement to facilitate
the commission of a crime;

3. Five counts of kidnapping for the other members of the Nguyen family who were
confined by gunpoint on the living room floor to facilitate the commission of a crime;

4. Conspiracy to commit kidnapping, e.g., by cutting up a T-shirt in the car
to
eventually be used for binding the victims.

5. Six counts of aggravated robbery for the taking of the jewelry by force or threat
from the presence of all six Nguyen family members.

6. Aggravated burglary of the Nguyen residence, i.e., with them in it.

7. Conspiracy to commit aggravated burglary, e.g., by driving together to the
Nguyen
residence.

The court ordered that the sentences for these convictions be served consecutively,
resulting
in an aggregate sentence of life (parole eligibility after 20 years), plus 1,306 months.

ANALYSIS

Issue 1: Did the district court err in denying Pham's Batson challenge at the conclusion
of voir dire?

After voir dire, Pham, who is Vietnamese, objected to the State's use of peremptory
strikes
against four allegedly Hispanic venirepersons. The district court overruled his objection. On
appeal,
Pham admits that the State's peremptory challenges to the two alleged Hispanic persons who had
non-Hispanic surnames (J.H. and J.F.) were race neutral, and limits his argument to
venirepersons
J.C. and M.O. The State responds that Pham fails to meet his burden of proving purposeful
discrimination.

When we review a challenge under Batson v. Kentucky, 476 U.S. 79, 90 L.
Ed. 2d 69, 106
S. Ct. 1712 (1986), concerning the State's use of a peremptory challenge, we ask whether the trial
court abused its discretion in determining if the challenged strikes were constitutionally
permissible.
See State v. Washington, 275 Kan. 644, Syl. ¶ 1, 68 P.3d 134 (2003).
Discretion is abused only
when no reasonable person would take the view adopted by the trial court. The defendant bears
the
burden of establishing such an abuse of discretion. State v. Sanchez-Cazares, 276
Kan. 451, 454,
78 P.3d 55 (2003).

We further specified the framework for analyzing the issue in Washington,
275 Kan. 644,
Syl. ¶ 2:

"The Batson analysis involves a three-step process. First, the
defendant must make a prima
facie showing that the prosecutor has exercised peremptory challenges on the basis of race.
Second,
if the requisite showing has been made, the burden shifts to the prosecutor to articulate a
race-neutral
explanation for striking the jurors in question. In this second step, the prosecutor is only required
to
put forth a facially valid reason for exercising a peremptory strike to satisfy the second step of the
Batson analysis. Finally, the trial court must determine whether the defendant has
carried his or her
burden of proving purposeful discrimination."

The standard of review of the first step – the prima facie showing on the basis of
race – is a
question of legal sufficiency subject to plenary review. State v. Bolton, 274 Kan. 1,
9, 49 P.3d 468
(2002).

Regarding the second step – the prosecutor's burden to show a race-neutral
explanation for
striking the jurors in question – it does not demand a prosecutor's explanation that is
persuasive, or
even plausible, but merely facially valid. See State v. Vargas, 260 Kan. 791, Syl.
¶ 3, 926 P.2d 223
(1996). Further, unless a discriminatory intent is inherent in the prosecutor's explanation, the
reason
offered will be deemed race neutral. Accordingly, the ultimate burden of persuasion rests with,
and
never shifts from, the opponent of the strike. State v. Vargas, 260 Kan. 791, Syl.
¶ 3.

Finally, the standard of review of the third step – the trial court's decision on the
ultimate
question of whether the defendant has carried the burden of proving purposeful discrimination
– is
greatly deferential because the determination is factual. State v. Walston, 256 Kan.
372, 379, 886
P.2d 349 (1994).

"'Deference to trial court findings on the issue of discriminatory intent makes
particular sense
in this context because, as we noted in Batson, the finding will "largely turn on
evaluation of
credibility." [Citation omitted.] In the typical peremptory challenge inquiry, the decisive
questions
will be whether counsel's race-neutral explanation for a peremptory challenge should be
believed.
There will seldom be much evidence bearing on that issue, and the best evidence often will
be the
demeanor of the attorney who exercises the challenge. . . . [the evaluation of which] lies
"peculiarly
within a trial judge's province." [Citations omitted.]'" Walston, 256 Kan. at 379
(quoting Hernandez
v. New York, 500 U.S. 352, 364-65, 114 L. Ed. 2d 395,111 S. Ct. 1859 [1991]).

We begin by acknowledging that Pham, who is not Hispanic, has standing to raise a
Batson
challenge based upon the striking of Hispanic venirepersons. See State v. Edwards,
264 Kan. 177,
193, 955 P.2d 1276 (1998) (defendant need not establish that he or she is a member of a
cognizable
minority group because the focus is on the individual rights of jury members not to be excluded
on
the basis of race or gender).

Next, Pham must make a prima facie showing that the prosecutor has exercised
peremptory
challenges on the basis of race. Although the district court correctly stated that Hispanics are an
ethnic, not racial, group, this court previously has considered the exclusion of Hispanics in the
Batson analysis. See State v. Arteaga, 257 Kan. 874, 878, 896 P.2d
1035 (1995). We conclude that
Pham made a prima facie showing that J.C. and M.O., who are Hispanic, were struck for that
reason.

In turn, the State offered the district court its race-neutral reasons for the peremptory
strikes
of J.C. and M.O. The State pointed out that during voir dire J.C. did not answer any questions
from
the State or the defense, even with so much as a nod of the head, demonstrating that he either was
not listening or simply had no interest in being in the courtroom and in assisting in finding a jury.
The State cited one example it felt would directly have affected J.C. He is a liquor store clerk
and
the only one working at the store during the day but failed to respond when the panel was asked
if
there were any pressing personal business or work-related matters that would make it difficult for
anyone to attend the trial for the next 3 to 5 days.

As for M.O., the State pointed out that she had limited abilities to communicate in
English,
that she stated she was uncomfortable sitting on the jury because she did not know if she could
adequately express her opinions to other members of the jury, and because she might have
difficulty
understanding written documents and medical testimony.

"Hostility toward the prosecution, as evidenced by oral responses, tone of voice, sitting
with arms
crossed, leaning forward when defense counsel conducts voir dire, or leaning back while the
prosecution asks questions, is a matter which the trial court may take into consideration in
determining whether the prosecutor has a valid and neutral reason for striking the juror.
Normally,
the trial court's decision will be made immediately after voir dire and the trial court will have the
benefit of having just observed the prospective jurors and having heard the questions and
answers.
Again, however, the trial judge must be particularly sensitive when body language,
alone, is advanced
as a reason for striking a juror of the defendant's race." (Emphasis added.) 245 Kan. at 374.

Body language was not the sole reason advanced by the State for striking J.C., however.
The
State offered that J.C. failed to answer any questions, particularly one that appeared to be
especially
relevant to his work situation.

Pham replies that the State did not strike all the prospective jurors who failed to respond
to
questions from counsel. Citing State v. Walston, 256 Kan. 372, 381, 886 P.2d 349
(1994), he argues
the similarity of white jurors who were not challenged should be included in the evaluation in
determining whether the State's reason is legitimate or merely a pretext for a true discriminatory
motive. The district court, however, should consider that factor only if it is brought to the district
court's attention. 256 Kan. 372, Syl. ¶ 4. The burden of creating a record of relevant facts
belongs
to the defendant. 256 Kan. at 382. Here, Pham did not raise to the district court the similarity of
white jurors who were not challenged, so this court has no basis for considering this argument on
this record.

Regarding M.O., Pham argues that there were no written documents or medical testimony
presented at trial which were beyond her comprehension. There is no record of M.O.'s level of
comprehension, however, only that she could understand English and that she was uncomfortable
with her ability to explain her opinions to others. We conclude this is a sufficiently race-neutral
ground for excluding a potential juror. See State v. Smith, 352 N.C. 531, 548, 532
S.E.2d 773 (2000)
(to assure that defendants be judged fairly and impartially, a juror must, at the very least, have
sufficient proficiency in the English language as to enable him or her to fully comprehend the
testimony and the court's instructions and to fully and effectively participate in the jury's
deliberations).

Pham fails to show that the district court abused its discretion in determining that the
State's
strikes of venirepersons J.C. and M.O. were constitutionally permissible.

Issue 2: Did the district court err in admitting into evidence Pham's statements to law
enforcement
made without being provided an interpreter?

Pham objects to the admission of statements he made to the police, i.e., agent
Falletti,
because they were taken without an interpreter in violation of K.S.A 75-4351(e). The State
responds
that although English is not Pham's primary language, the statements were voluntarily and
understandingly made.

In reviewing a trial court's decision regarding the suppression of a confession, an
appellate
court reviews the factual underpinnings of the decision by a substantial competent evidence
standard
and the ultimate legal conclusion by a de novo standard. State v. Swanigan, 279
Kan. 18, Syl. ¶ 1,
106 P.3d 39 (2005).

Furthermore, in determining whether a confession is voluntary, a court looks at the
totality
of the circumstances, including the duration and manner of the interrogation; the ability of the
accused on request to communicate with the outside world; the accused's age, intellect, and
background; and the fairness of the officers in conducting the interrogation.
Swanigan, 279 Kan. 18,
Syl. ¶ 2. An additional circumstance for consideration is the accused's fluency in the
English
language. State v. Garcia, 243 Kan. 662, Syl. ¶ 8, 763 P.2d 585 (1988). The
essential inquiry in
determining the voluntariness of a statement is whether the statement was the product of the free
and
independent will of the accused. Swanigan, 279 Kan. 18, Syl. ¶ 2.

As Pham points out, K.S.A. 75-4351(e) states that a qualified interpreter shall be
appointed
for persons whose primary language is one other than English "prior to any attempt to interrogate
or take a statement from a person who is arrested for an alleged violation of a criminal law of the
state or any city ordinance."

We designated this statute's place in the confession analysis in State v.
Zuniga, 237 Kan. 788,
791-92, 703 P.2d 805 (1985), stating:

"K.S.A. 75-4351 and the sections that follow it provide the machinery for the
selection,
appointment and compensation of interpreters under various circumstances. They authorize the
expenditure of public funds for that purpose. The statutes do not contain any sanctions for
violations
thereof. Suppression is a severe sanction, much criticized. While the purpose is to encourage
peace
officers to follow statutes or constitutional guidelines, it may prevent otherwise proper evidence
from
being introduced in the case at hand.

. . . .

"The purpose behind K.S.A. 75-4351(e) is to ensure that there is clear
communication
between one who is in custody and the officers who are questioning him. The statute does
not state
a rule of evidence. Whether or not an interpreter is appointed and is present at the taking of the
statement, the trial court must still determine whether an in-custody statement was freely,
voluntarily
and knowingly given, with knowledge of the Miranda rights. That determination must be based
upon
the totality of the circumstances." (Emphasis added.)

We affirmed in State v. Nguyen, 251 Kan. 69, 74-75, 833 P.2d 937 (1992),
that the absence
of an interpreter is not dispositive of the confession's admissibility:

"When an in-custody statement is taken in English from an accused whose primary
language is not
English, but who also speaks English, failure of the officers to have an interpreter in attendance
pursuant to K.S.A. 75-4351(e) does not vitiate the statement if it was freely, voluntarily,
knowingly,
and understandingly made with full knowledge of the Miranda rights." (Citing
State v. Garcia, 243
Kan. 662, Syl. ¶ 9, 763 P.2d 585 [1988].)

In the instant case, the district court held a hearing on the voluntariness of Pham's
statement.
After hearing testimony from Detective Jason Ott, Agent David Falletti, and the defendant;
hearing
arguments; and watching the videotape of the interrogation, the district court ruled that the
statement
was freely and voluntarily given. As a basis for this legal conclusion, the court made the
following
findings:

"1. The defendant filed a motion seeking to quash the taped interview of the
defendant. The
plaintiff filed a motion for a Jackson v. Denno hearing regarding the same taped
interview.
Testimony was received and arguments were heard. The court took the matter under
advisement so as to view the tape.

"2. The interview took place in an interview room at the police department in Liberal,
Kansas.
The defendant was supplied with water and was helped in notifying his employer of his
whereabouts. There was no evident physical discomfort during the interview. The
defendant had been in the United States approximately 25 years and had previously served
time in the Kansas Prison system for approximately 19 years. At the time of the interview
the defendant had full time employment in the meat packing industry in Liberal, Kansas.
The interview was in English and lasted approximately 2 hours. English was not his native
language. There is no contention on the part of either party that this is not a custodial
interrogation.

"3. Before the interview, the defendant read the Miranda warning and
indicated that he
understood the warning. When he read the warning, the defendant occasionally paused to
correct his pronunciation of the words on the form. The wording on the form was in
common language of ordinary meaning.

"4. During the entire session the responses were fairly quick and were appropriate to
the
questions asked. Although the defendant spoke with a heavy accent with some difficulty in
pronunciation, minor syntax problems, and other minor word usage problems, the tape
reveals no substantial presence of evident misunderstanding in the conversation, questions
and answers.

"5. The defendant contended that although he reads and speaks English that he
understands only
about 30% of the words. The taped interview, taken in toto, does not support this
contention. Again, there is no evidence of any substantial misunderstanding during the
interview or during the reading of the Miranda warning. The defendant's answers
and
statements were relatively quick and appropriate to the question asked or the situation at
hand.

"6. It was evident during the interview that the defendant knew of his rights. This
was shown
when the defendant, at the end of the interview, after giving consent to search his vehicle
and place of abode and being told he was being arrested for aggravated burglary and
robbery, said that he did not have any money and needed a lawyer.

"7. The defendant contends that the explanation of relatively complicated
right-to-search-form
by the interviewer was proof that the Miranda warning needed more explanation.
While it
is true that the interviewer explained the consent to search form, it is not clear to the court
how this proves that the Miranda warning should have been explained in detail.
Much of
the conversation around the consent to search appeared to be about just exactly what was to
be searched and how. The Miranda warning need no such explanations.

"8. During the interview, upon several occasions, the interviewing KBI agent
exhorted the
defendant to tell the truth. There were, however, no promises made by the agent as to any
leniency or deals.

"9. It is evident from the totality of the conversation and interview that the defendant
had an
English language capacity to understand the plain words of the Miranda warning.
There is
no per se rule requiring an interpreter for a person whose native language is not English.
The test is whether or not English is sufficiently understood by the defendant to understand
the plain language of the Miranda warning. As such, the state has satisfied the
burden.
Additionally, it is evident from the totality of the conversation and all of the factors
surrounding the interview that the waiver of rights and his subsequent statements were the
product of the free and voluntary will of the defendant."

The district court's findings are supported by substantial competent evidence contained in
the
videotaped statement and the testimony of Ott and Falletti at the suppression hearing. See
State v.
Swanigan, 279 Kan. 18, Syl. ¶ 1, 106 P.3d 39 (2005). Falletti testified he went over
the Miranda
rights with Pham by having him read out loud each of the five lines from the
Miranda card. After
each line was read by Pham, Falletti asked Pham if he understood, to which Pham applied in the
affirmative.

The videotape shows throughout that Pham was able to understand and converse with
Falletti in English. Among other things, Pham demonstrated that he understood by providing
numerous specific details during the 2-hour interview about the events of the morning of the
crime.

Falletti also testified that before taping began he asked Pham if he wanted an interpreter,
but
Pham stated he did not need one. Ott confirmed that Falletti asked if Pham needed an interpreter.
Ott testified that Pham told Falletti he had been in America for over 20 years, he understood
English,
and he did not need an interpreter. While Pham denies these and other comments attributed to
him,
this court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in
the
evidence. State v. Swanigan, 279 Kan. at 23.

Under the totality of the circumstances, including the absence of an interpreter, we can
independently conclude as a matter of law that Pham's statements were made freely, voluntarily,
knowingly, and understandingly with full knowledge of his Miranda rights. See
State v. Garcia, 243
Kan. 662, Syl. ¶ 9, 763 P.2d 585 (1988). See also Swanigan, 279 Kan. 18,
Syl. ¶ 1 (whether
confession is voluntary is conclusion of law).

Issue 3: Did the district court err in admitting into evidence certain
photographs?

Pham objected to the admission of photographs taken from the surveillance video tape at
the
Kwik Shop. At trial, and now on appeal, he argues a lack of foundation because the store clerk,
who
was present at the time of Pham's appearance recorded on the tape, did not testify. As a result, he
alleges no one could testify that the resultant photographs were accurate depictions of what had
occurred in the store. He does not dispute their relevance, our threshold determination on
admissibility of evidence. See State v. Meeks, 277 Kan. 609, 618, 88 P.3d 789
(2004). The State
argued that a general foundation for the photographs had been met, and the district court agreed.

In attempting to lay foundation for the photographs, the State offered testimony from
Dawn
Walker, the assistant manager at the Kwik Shop. Walker testified that she came to work at 6
a.m.
on November 11, 2002. At 6:30 a.m., a police officer came in and asked for videotape from the
store's security cameras. According to Walker, the Kwik Shop has surveillance cameras that
record
onto a tape, the recording equipment is locked away in the back room, and only employees have
access to the area. Walker unlocked the back room, stopped the tape, pulled it out, and gave it to
the
officer without reviewing it. She testified that the date appearing on the tape is accurate, but the
time
is an hour off due to daylight savings time.

As a further foundation effort, Officer Brian Ruder testified that he watched portions of
the
surveillance tape frame by frame and took still photographs of three Asian males whom he saw
on
the tape. He testified to the process by which he took the still photographs and that they
accurately
depicted what he saw on the videotape.

Although no Kansas case is directly on point, State v. Suing, 210 Kan. 363,
502 P.2d 718
(1972), provides some guidance. There, this court considered photographs of a getaway car,
which
were admitted even though no one testified that the photographs were "'true and accurate
reproductions' of the car, i.e., the 'magic words' were lacking." 210 Kan. at 364. We
held that the
real issue as to the photographs was not whether they accurately portrayed the automobile, but
whether the automobile portrayed was the one used in the robbery. Although none of the several
witnesses who identified the pictures was specifically asked if they were "fair representations" of
the
car, it was apparent that they were. 210 Kan. at 365. The court summarized various witnesses'
testimony in which they stated that the car in the photographs was the same car they had
observed
that night during and after the robbery and when stopped by police. "The clear implication is that
the likenesses were good enough for the witnesses to identify the car. We think that was all that
was
required, considering the limited purpose for which the pictures were offered." 210 Kan. at 365.

Similarly, in the instant case, the Kwik Shop photographs were used to identify Pham as
the
person accompanying Giang and Nam Nguyen, both of whom had been identified by several of
the
victims as two of the gunmen. Pham was never identified by the victims. As in
Suing, the real issue
was not whether the photographs – or the videotape from which they came –
accurately portray
Pham, but whether he was the one in the company of the Nguyens. Pham admitted to Falletti that
he
was and pointed out himself, and the Nguyen brothers, in the photograph to Falletti. Officer
Ruder
identified Pham in the photograph as well.

Under these circumstances, we conclude that Ruder's testimony was sufficient foundation
to show that the photographs were accurate reproductions of the video stills. We also conclude
that
Walker's testimony, including the routineness of the surveillance recordings, was sufficient
foundation to show that the videotape accurately depicted a certain place (the Kwik Shop), on a
certain date (November 11), at a certain time (an hour different from the time stamp). Walker
further
testified that the recording equipment was accessible only to employees, negating any serious
inference that the tape had been subjected to tampering.

Lastly, by our rejection of Pham's argument that his statement to Falletti should have been
suppressed, his admission contained in the statement that he was present in the store with the
Nguyen
brothers early in the morning of November 11, 2001, greatly dilutes the consequences of the
photographs' admissibility. In short, they merely confirm his own voluntary and already
damaging
statement. Their admission, if erroneous, was harmless. See K.S.A. 60-261.

Issue 4: Did the district court err in denying Pham's motion for judgment of acquittal
as to the six
counts of aggravated robbery because they were multiplicitous?

Pham argues that multiplicity bars his convictions of the six counts of aggravated robbery
except that of Bau Tran. He further argues that an insufficiency of evidence bars even that count,
i.e., there was no evidence that any one of the three gunmen took the bracelet and
necklace from the
house.

In a partial concession to Pham's multiplicity claim, the State abandons any argument that
convictions on all six counts can survive. It alleges that two convictions – one count for
each
daughter – should be affirmed because they each lost jewelry. The State also rejects any
argument
that the convictions are not supported by sufficient evidence, emphasizing it does not have to
locate
the missing jewelry to prove its case.

We have stated that multiplicity is the charging of a single offense in several counts of a
complaint or information. State v. Kessler, 276 Kan. 202, 204, 73 P.3d 761 (2003).
The principal
danger of multiplicity is that it creates the potential for multiple punishments for a single offense.
276 Kan. at 205. Multiple punishments for a single offense are prohibited by the Double
Jeopardy
Clause of the Fifth Amendment and by §10 of the Kansas Constitution Bill of Rights. 276
Kan. at
205.

In State v. Schoonover, 281 Kan. __, 133 P.3d 48 (2006), we announced an
analytical
framework which applies when the issues arise from cumulative punishments imposed in one
case.
We held that

"[i]n considering a double jeopardy issue, the overarching inquiry is whether the
convictions are for
the same offense. There are two components to this inquiry, both of which must be met for there
to
be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and [if so]
(2)
By statutory definition are there two offenses or only one?" 281 Kan. at ___.

We elaborated on the first component:

"If the conduct is discrete, i.e., committed separately and severally, the
convictions do not arise from
the same offense and there is no double jeopardy violation. If the charges arise from the same act
or
transaction, the conduct is unitary and the second component must be analyzed to see if the
convictions arise from the same offense." 281 Kan. at ___.

There, we listed several factors to be considered in determining if conduct is unitary,
i.e., if
it is the same conduct. They include (1) whether the acts occur at or near the same time; (2)
whether
the acts occur at the same location; (3) whether there is a causal relationship between the acts, in
particular whether there was an intervening event; and (4) whether there is a fresh impulse
motivating some of the conduct. 281 Kan. at ___.

Here, Pham was in one bedroom, opened one dresser drawer, opened one purse contained
there, and removed two pieces of jewelry that Bau Than had placed there – one piece
belonging to
daughter Hong and the other piece belonging to daughter Ann. We conclude this constituted one
transaction, i.e., the convictions arise from the same conduct, and proceed to step
two of the analysis.

The second component requires us to determine whether, by statutory definition, there are
multiple offenses or only one? Because the double jeopardy issue in the instant case arises from
convictions for multiple violations of a single statute, i.e., aggravated robbery under
K.S.A. 21-3427,
the unit of prosecution test is applied. See Bell v. United States, 349 U.S. 81, 99 L.
Ed. 905, 75 S.
Ct. 620 (1955); Schoonover, 281 Kan. at ___. Specifically, "the test is: 'How has the
legislature
defined the scope of conduct which will comprise one violation of the statute?' Under this test,
the
statutory definition of the crime determines what the legislature intended as the allowable unit of
prosecution." Schoonover, 281 Kan. at ___. Because there can be only one
conviction for each, we
ask: "What is the allowable unit of prosecution for aggravated robbery?"

We observe that under K.S.A. 21-3427, an aggravated robbery is: "[A] robbery, as
defined
in K.S.A. 21-3426 and amendments thereto, committed by a person who is armed with a
dangerous
weapon or who inflicts bodily harm upon any person in the course of such robbery."

In turn, a robbery, as defined in K.S.A. 21-3426, is "the taking of property from the
person
or presence of another by force or by threat of bodily harm to any person." In short, the statutes
establish that an aggravated robbery is committed if a person who is armed with a dangerous
weapon
takes property from the person or presence of another by force or threat of bodily harm.

Because the jewelry was not physically taken from the person of any of the victims, the
first
issue is whether it was taken from the presence of any person. The jewelry was in the bedroom,
and
the family members were all tied up in the living room. Under similar facts, we have concluded
that
property was taken from the victim's presence. See State v. Evans, 251 Kan. 132,
834 P.2d 335
(1992) (victim tied up in living room and money was taken from her bedroom).

It is unclear from the statute, however, whether the legislature intended for all six family
members to be claimed as victims for the robbery of jewelry (a) belonging to only two and (b)
taken
from the bedroom of a third who was holding the jewelry for safekeeping. Where the legislative
intent is unclear, we apply the rule of lenity. See Bell v. United States, 349 U.S. at
83 (a separate
conviction for each victim under the statute is permissible only if the legislature authorized that
unit
of prosecution "clearly and without ambiguity"). In the absence of clear legislative intent, the
rule
of lenity presumes a single physical action harming multiple victims is only one offense.

In State v. Jackson, 218 Kan. 491, three men entered Nelson's Pharmacy in
Kansas City,
Kansas, and at least two were armed with handguns. After ordering those present onto the floor,
the
trio robbed three people: (1) the pharmacist on duty of money, drugs, and some deposit slips, all
belonging to the pharmacy; (2) a customer of some money; and (3) an employee of money and a
pocketknife. The defendant alleged he should not have been charged three times with the same
crime. This court disagreed: "While the incident here was one overall transaction, three separate
robberies were committed with property of three different persons being taken by threat of bodily
harm against three separate individuals." 218 Kan. at 492.

The Jackson court additionally stated:

"As appellant correctly points out, the test to be applied in determining identity of
offenses
is 'whether each requires proof of a fact which is not required by the others.' . . . [T]his case
involves
three victims, each of whom was robbed, and the evidence required to prove the crime is
different as
to each. Three separate counts were therefore proper." 218 Kan. at 492-93.

Similarly, 3 years later in State v. Branch & Bussey, 223 Kan. 381, this
court addressed three
men entering the apartment of Joel Bruner in Lenexa, Kansas, with the intention of robbing
Bruner
of his marijuana. They brandished firearms and forced all occupants to the floor. Defendants
Branch and Bussey seized the marijuana and robbed Bruner, his roommate Nelson, and visitor
Hudson of their billfolds. The defendants contended that all the robbery counts except one
should
have been dismissed. This court disagreed:

"The basis for this contention is defendants' belief that only one robbery was committed.
They are
mistaken. Since each robbery was committed upon a different person it was necessary to prove
different facts for each of the charges; thus, the charges were separate and not duplicitious.
[Citations
omitted.]" 223 Kan. at 384.

The court addressed what effectively was the unit of prosecution analysis by discussing
In re Allison,
13 Colo. 525, 532, 22 Pac. 820 (1889). There, the Colorado Supreme Court reviewed
defendant's
argument that his convictions for multiple counts of highway robbery were multiplicitous:

"'. . . Relator was not tried for robbing the stage; each of the indictments charged him with
robbing a different
individual passenger upon the stage. . . . [E]ven if regarded as a single act, they affected separate
objects. And
'where one unlawful act operates on several objects, there may be several offenses committed,
and so several
prosecutions for the same criminal transaction.'" 223 Kan. at 381.

Later that same year in State v. McQueen, 224 Kan. 420, the court addressed
armed men
robbing the Grove IGA store in Wichita. Among other things, they took $5,200 in the presence
of
five store employees, including manager Larry Wolf. This action formed the basis for one count
in
the criminal complaint. They also took a .38 caliber Charter Arms revolver from the person and
in
the presence of Wolf, which formed the basis for another count. The defendants essentially
argued
multiplicity.

The McQueen court agreed with the defendants, stating:

"The state attempts to justify the separate charges by contending there was a lapse
of time
between the two incidents. When the robbery was in progress, Wolf was confronted in the office
by
one of the robbers who demanded and received the gun. Wolf was ordered to leave the office
and
then the money was taken. The state further contends count eleven charges aggravated robbery
of the
money belonging to Grove IGA, while count twelve separately charges aggravated robbery of a
gun
belonging to Wolf. These arguments are not persuasive. There was only one store robbery.
Both the
money and the gun were kept on the store premises in connection with running the business.
This
court has held ownership of the property taken is not an element of robbery under K.S.A.
21-3426
[Citation omitted.] Multiple offenses cannot be carved out of a single robbery because of
separate
ownership of the property taken.

"The state may not split a single offense into separate parts. When there is one
wrongful act
it does not furnish a basis for more than one criminal prosecution. [Citations omitted.] The
convictions and sentences on count twelve are vacated and set aside." (Emphasis added.) 224
Kan.
at 430-31.

In short, McQueen appears to be slightly off the path prepared by this court
in Jackson and
Branch & Bussey.

Two years after McQueen this court decided State v. Shoemake,
228 Kan. 572. Shoemake
contained two points important to our resolution. First, it followed the path prepared by
Jackson and
Branch & Bussey. Second, it explained how McQueen fit into the
overall analysis.

There, while defendant Shoemake apparently waited in a getaway car, his crime partner,
Lucas, entered Nigro's supermarket in Kansas City, Kansas. He approached the manager, Lee
Trial,
brandished a pistol, and demanded money. Manager Trial delivered money from one cash
register.
Lucas then took money by force from a store cashier, Frederick Larison, at a different register.
Manager Trial was then forced into the office, and more money was taken. The monies were
placed
in a sack provided by carry-out boy, Michael Jones. On appeal, defendant Shoemake argued
there
was only one robbery and that the charges and convictions of three separate counts of robbery
– of
Trial, Larison, and Jones – allowed multiple convictions for a single offense.

Citing State v. Branch & Bussey and State v. McQueen, this
court agreed that the count
involving Jones could not stand because no property was forcibly taken from him by Lucas. We
affirmed the other two counts of robbery, however, stating:

"Where, in the course of the robbery of a business establishment, several
employees are held
at gunpoint and compelled by force to deliver to the robber property in the possession or custody
of
the employee, a separate and distinct aggravated robbery occurs with the taking of property
from eachvictim. In the present case, property was taken from the manager, Lee Trial, and
from the cashier,
Frederick Larison, both of whom were custodians of store property. The forcible taking of such
property from these employees constituted separate and distinct aggravated robberies which
could be
charged in separate counts." (Emphasis added.) 228 Kan. at 577.

In the process, the Shoemake court explained its decision in McQueen
made two years earlier:

"In State v. McQueen . . . it was held that multiple offenses could not be
charged where only one
person was robbed of items of property belonging to different persons. In that case, one
conviction
for aggravated robbery was set aside where the only victim was compelled at
gunpoint to deliver
property belonging to a supermarket and also a gun belonging to himself." (Emphasis added.)
228
Kan at 577.

As mentioned, a synthesis of these four cases demonstrates that under proper
circumstances,
one transaction can support more than one count of aggravated robbery. See, e.g.,
State v. Jackson,
218 Kan. 491. Here, however, as in State v. McQueen, 224Kan.
420,only one person was relieved
of items of property belonging to different persons. Hence, there was only one victim. As a
result,
as in McQueen, only one count may stand, i.e., the count regarding Bau
Tran.

Insufficiency of the evidence

Pham also argues that the evidence is insufficient to support his conviction for the
aggravated
robbery of Bau Tran. Specifically, he points to Falletti's testimony that Pham denied taking any
items of jewelry from the house, that Pham did not see any jewelry taken by anybody else, and
that
the jewelry was never recovered. He claims that the only evidence of missing jewelry was the
testimony of Bau Tran that she received a necklace from Ann and a bracelet from Hong the night
before the incident and that both items were gone from her purse located in her dresser in her
bedroom when she went there after the police arrived. The State in turn points to evidence to
support
the conviction.

When the sufficiency of the evidence is challenged in a criminal case, the standard of
review
is whether, after review of all the evidence, viewed in the light most favorable to the prosecution,
the appellate court is convinced that a rational factfinder could have found the defendant guilty
beyond a reasonable doubt. State v. Burhans, 277 Kan. 858, 871, 89 P.3d 629
(2004). An appellate
court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the
evidence. State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005).

Viewed in the light most favorable to the prosecution, the evidence showed that Pham,
Nam
Nyugen, and Giang Nyugen, each masked and armed with a loaded gun, entered the residence at
522
Colony in the early morning hours. The three gunmen gathered the family from various rooms in
the house at gunpoint, forced them to lie on the living room floor, and bound the hands of each
family member. Pham and Giang then went through various rooms of the house searching for
money. After the gunmen left, Hong's $5,000 diamond bracelet and Ann's $600 diamond
pendant
necklace were missing from a purse in the dresser drawer of their parents' bedroom.
Additionally,
Pham admitted to Falletti that he had not worked in a few weeks and needed money; hence, the
reason for the intrusion in the Nguyen home.

At the outset, we again observe that an aggravated robbery is committed if a person who
is
armed with a dangerous weapon takes property from the person or presence of another by force
or
threat of bodily harm. K.S.A. 21-3426; K.S.A. 21-3427.

We also observe that the State did not have to prove that Pham was the intruder who took
the jewelry. The actions of one robber can be used to prove the elements of the crime against the
other. State v. Gomez, 234 Kan. 447, 451, 673 P.2d 1160 (1983); See State v.
Johnson &
Underwood, 230 Kan. 309, 311, 634 P.2d 1095 (1981) (under aiding and abetting statute,
not
necessary for both defendants to possess a gun to justify both being convicted of aggravated
robbery).

Finally, we observe that the State did not have to find the stolen items to prove that they
were
stolen. In State v. Stephens, 266 Kan. 886, 975 P.2d 801 (1999), the defendant
argued that there was
no evidence he took property from the presence of the victim. This court stated: "Under our
standard
of review, it is sufficient if there was evidence linking Stephens to the crime and there was
property
missing from the victim's presence." 266 Kan. at 893. Similarly, in the present case, the jewelry
was
never found, but there was evidence linking Pham to the crime and evidence that the jewelry was
missing after the three gunmen were in the house. See State v. Peckham, 255 Kan.
310, 342, 875
P.2d 257 (1994) (although victim Hernandez' wallet of money was not recovered, the evidence
presented at trial created a reasonable inference that defendant did steal these items as part of his
plan when he killed Hernandez).

Though the property was never recovered, a rational factfinder could have reasonably
concluded beyond a reasonable doubt that valuable jewelry had been taken from the bedroom by
Pham while he was armed with a dangerous weapon.

In light of our holdings on multiplicity and sufficiency of the evidence, the case is
reversed
and remanded for resentencing on a conviction of one count of aggravated robbery; the remaining
convictions of five counts of aggravated robbery are reversed and their accompanying sentences
vacated.

Pham argues that his convictions for conspiracy to commit kidnapping and
conspiracy to
commit aggravated burglary are multiplicitous because there was just one conspiracy containing
various subplots, citing State v. Mincey, 265 Kan. 257, 963 P.2d 403 (1998), and
State v. Wilkins,
267 Kan. 355, 985 P.2d 690 (1999). The State responds that there were two separate agreements
to
perform two different substantive offenses. The first agreement, to steal money in the Nguyen
family
home, was made at the pool hall in Liberal on November 11 and partially acted upon via the
drive
to Garden City. The second agreement, to kidnap the Nguyens, was made in the car outside their
home and partially acted upon in cutting the white T-shirt to bind the Nguyen family
members.

As previously noted, whether convictions are multiplicitous is a question of law subject to
unlimited review. State v. Stevens, 278 Kan. 441, Syl. ¶ 1, 101 P.3d 1190
(2004). See State v.
Mincey, 265 Kan. at 266 (whether a defendant can be convicted of two conspiracies based
upon a
single agreement to commit two distinct crimes is a question of law over which this court has
unlimited review).

As mentioned, in State v. Schoonover, 281 Kan. ___, we established a
stair-step analysis to
determine whether multiplicity exists. First, we determine whether the charges arise from the
same
conduct. If not, there is no double jeopardy violation. If yes, a second component must be
analyzed
to see if the convictions arise from the same offense. If the double jeopardy issue arises from
convictions for multiple violations of a single statute, the "unit of prosecution" test is applied.

The law of conspiracy does not easily lend itself to this particular analysis, however,
especially using "arising from the same conduct" as the threshold question. A single conspiracy
can
last for years, with many of its substantive offenses being completed during that time,
i.e.,
necessarily involving "different conduct" for each substantive offense. See, e.g.,
United States v.
DiPasquale, 561 F. Supp. 1338 (E.D.Pa. 1983) (conspiracy to collect claimed debts by
extortionate
means lasted approximately 2 years; defendants also convicted of multiple counts of substantive
offenses committed on different dates during that span). "Conspiracy is an offense which
continues
up to the point of abandonment or success." 2 LaFave, Substantive Criminal Law, § 12.3,
p. 286 (2d
ed. 2003). As discussed later in this opinion, we begin with a determination of the applicable
unit
of prosecution, and then proceed to a factual analysis. But first, some background is required.

The seminal case for our approach to the instant case is Braverman v. United
States, 317 U.S.
49, 87 L. Ed. 23, 63 S. Ct. 99 (1942). There, the defendants were engaged in the illegal
manufacture,
transportation, and distribution of liquor in violation of a number of internal revenue laws, for
which
they were charged and convicted on seven counts. Similar to the instant case, each count charged
a conspiracy to violate a different internal revenue law, but pursuant to a single conspiracy
statute,
§ 37 of the Criminal Code.

The government conceded that only a single agreement had been proved, and the Court
reversed for this reason:

"[T]he precise nature and extent of the conspiracy must be determined by reference to the
agreement
which embraces and defines its objects. Whether the object of a single agreement is to commit
one
or many crimes, it is in either case that agreement which constitutes the conspiracy which the
statute
punishes. The one agreement cannot be taken to be several agreements and hence several
conspiracies because it envisages the violation of several statutes rather than one." 317 U.S. at
53.

The Court continued:

"The single agreement is the prohibited conspiracy, and however diverse its objects it
violates but a
single statute, § 37 of the Criminal Code. For such a violation, only the single penalty
prescribed by
the statute can be imposed." 317 U.S. at 54.

" A single agreement to commit several crimes constitutes one conspiracy. By the same
reasoning,
multiple agreements to commit separate crimes constitute multiple conspiracies."
488 U.S. at 570-71.

State v. Mincey, 265 Kan. 257, was the first time that this court addressed the
issue of
multiplicity in conspiracies. Mincey was convicted by a jury of, among other things, conspiracy
to
commit first-degree murder and conspiracy to commit aggravated robbery. Although the issue
had
not been raised at the trial court, because Mincey's claim involved only a point of law and was
determinative of some issues, this court nevertheless reviewed her argument that "she could not
be
convicted of two separate conspiracies arising out of one agreement to commit two offenses."
265
Kan. at 259, 266. We held that whether a defendant can be convicted of two conspiracies based
upon a single agreement to commit two distinct crimes is a question of law over which we had
unlimited review. 265 Kan. at 266.

The Mincey court did not recite Kansas' general conspiracy statute, K.S.A.
21-3302, which
states at subsection (a):

"A conspiracy is an agreement with another person to commit a crime or to assist in
committing a
crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such
conspiracy is alleged and proved to have been committed by such person or by a co-conspirator."

Nevertheless, this court implicitly interpreted the statute's operative language, "an agreement
. . . to
commit a crime or to assist in committing a crime," to also mean an agreement to commit
several
crimes. It impliedly did so when it relied upon Braverman v. United States, which
dealt with a
similar statute. See Wong Tai v. United States,273 U.S. 77, 78 n.1, 71
L. Ed. 545, 47 S. Ct. 300
(1927) (Section 37 of the Criminal Code provides: "'If two or more persons conspire . . . to
commit
any offense against the United States, . . . and one or more of such parties do any act to effect the
object of the conspiracy each of the parties to such conspiracy' shall be fined, imprisoned, or
both.").

After discussing Braverman, the Mincey court concluded:

"A single continuing conspiracy, however diverse its objects, cannot be broken down into
component
sub-agreements for the purpose of multiple punishments or multiple prosecutions. When
separate
conspiracies are alleged and both are founded on a general conspiracy statute, the relevant
inquiry is
whether there existed more than one agreement to perform an illegal act or acts."
265 Kan. at 268.

The Mincey court held that the convictions of conspiracy to commit
first-degree murder and
of conspiracy to commit aggravated robbery were multiplicitous because the defendant had
known
substantially in advance of the crimes that her son and friend were going to rob someone, and she
counseled and advised them to kill the victim if they thought they might be identified and
arrested.
We therefore affirmed the conviction of conspiracy to commit first-degree murder and reversed
the
conviction of the less serious offense of conspiracy to commit aggravated robbery.

It is not entirely clear from the opinion whether the State only argued one conspiracy to
commit several crimes, in which case Braverman controlled the result, or whether
this court
determined that the facts warranted a conclusion of only one conspiracy. We stated:

"Braverman, like the conspiracy alleged against Mincey, has a single
agreement to commit several
crimes. Here, Mincey conspired to commit aggravated robbery and, if necessary, premeditated
murder. Even though there was the possibility of two crimes occurring, there was only one
criminal
agreement entered into by the defendants." 265 Kan. at 268.

If the Mincey court determined that the facts warranted a conclusion of only
one conspiracy,
it did not specify what factors, if any, it considered in reaching its conclusion. It is also unclear
whether the two substantive offenses were discussed in the same general conversation or in
different
conversations at different times as in the instant case.

Similarly, in State v. Wilkins, 267 Kan. 355, the defendant was convicted of
conspiracy to
commit murder and conspiracy to commit aggravated robbery. Because the issue of multiplicity
of
the conspiracy charges had not been raised by either of the parties, the court addressed it
sua sponte
to serve the ends of justice and to prevent a denial of Wilkins' fundamental rights. 267 Kan. at
367.
After quoting the Mincey language set forth earlier in this opinion, this court held
that there was only
one agreement between Wilkins and Bittle to kill the victim and for Wilkins to take the victim's
necklace to Bittle as proof of the killing: "The single continuing conspiracy in this case cannot be
broken down into component sub-agreements for the purpose of multiple prosecutions or
punishments." 267 Kan. at 367. Accordingly, Wilkins reinforced
Mincey's reliance upon Braverman
and Mincey's lack of reference to the language of the general conspiracy statute,
K.S.A. 21-3302.
The Wilkins court reversed the jury's conviction of the less serious offense of
conspiracy to commit
aggravated robbery.

As with Mincey, the Wilkins opinion is not entirely clear on
whether the State only argued
one conspiracy to commit several crimes, in which case Braverman controlled the
result, or whether
this court determined that the facts warranted a conclusion of only one conspiracy. If the latter,
the
court did not specify what factors, if any, it considered in reaching its conclusion. It does appear
that
the two substantive offenses were discussed in the same general conversation, see 267 Kan. at
358,
unlike the facts of the instant case.

We believe that State v. Bobic, 140 Wash. 2d 250, 996 P.2d 610 (2000),
provides assistance
in resolving the conspiracy multiplicity issue because it generally follows Kansas' analytical
approach. There, the two defendants and their associates stole vehicles, stripped them of
contents
and key parts, and stored the stolen items in various facilities. When insurance carriers sold the
stripped-out cars at auction, defendants bought the cars to obtain clear title. They then
reassembled
the vehicles with the stolen parts and sold them.

The defendants were charged with theft, possession of stolen property, and trafficking in
stolen property, with one count of conspiracy for each of the three substantive offenses. Both
were
convicted of multiple counts of possession of stolen property and of each of the three conspiracy
counts. They appealed the conspiracy convictions on the grounds of double jeopardy,
i.e.,
multiplicity.

The Bobic court acknowledged that the "same elements" test adopted in
Blockburger v.
United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), for determining whether
a
defendant was punished multiple times for the same offense would only apply where the
defendant
has multiple convictions for violating several statutory provisions. Because the defendants were
charged with three counts of conspiracy, each under the same conspiracy statute, for acts arising
from
a single, ongoing, multiobjective agreement, the court decided not to apply the Blockburger
analysis.
"Instead, the proper inquiry is 'what "unit of prosecution" has the Legislature intended as the
punishable act under the specific criminal statute.'" 140 Wash. 2d at 261 (citing, inter alia,
Bell v.
United States, 349 U.S. 81, 99 L. Ed. 905, 75 S. Ct. 620 [1955]).

The court then examined the Washington statute, Wash. Rev. Code § 9A.28.040(1)
which,
like the statute in Braverman and like K.S.A. 21-3302, provided for a crime, an
agreement, and a
step/overt act in pursuing the agreement:

"'A person is guilty of criminal conspiracy when, with intent that conduct
constituting a
crime be performed, he or she agrees with one or more persons to engage in or cause the
performance
of such conduct, and any one of them takes a substantial step in pursuance of such agreement.'"
140
Wash. 2d at 262.

Defendants argued under Braverman that their single agreement – to
steal, strip, repurchase,
and resell the vehicles for profit – constituted a single violation of the state conspiracy
statute,
regardless of the number of criminal objects of their agreement. The State responded that the
conspiracy statute required it to prove a single specific underlying crime; consequently, the
legislature intended to punish separately each individual criminal object of the agreement.

The Bobic court held that the first step in a unit of prosecution case is to
analyze the statute
in question. It held that its state statute was remarkably similar to the federal statute construed in
Braverman. It concluded that as in Braverman, "the appropriate focus
in Washington is on the
conspiratorial agreement, not the specific criminal object or objects." 140 Wash. 2d at 265. The
court held that its legislature intended that the unit of prosecution for conspiracy, within the
meaning
of double jeopardy, to be an "agreement and an overt act" rather than the specific criminal objects
of the conspiracy.

The court next observed that its analysis of legislative intent did not end its unit of
prosecution analysis, however:

"Of necessity, a factual analysis as to the unit of prosecution is necessary because even
where the
Legislature has expressed its view on the unit of prosecution, the facts in a particular case may
reveal
more than one 'unit of prosecution' is present. [Citation omitted.] Multiple conspiracies may be
charged where the facts of the case support multiple criminal agreements. [Citation omitted.]"
140
Wash. 2d at 266.

The Bobic court noted that 21 years earlier the Washington Court of Appeals
had

"looked to whether the time, persons, places, offenses, and overt acts were distinct in
deciding if
multiple conspiracies were present. Similarly the United States Court of Appeals for the Second
Circuit looks to see if the following factors overlap in determining whether multiple conspiracies
are
only a single conspiracy for double jeopardy purposes; the offenses charged; overlap of
participants,
overlap of time; similarity of operation; existence of common overt acts; the geographic scope of
the
actions or location of the overt acts; common objectives; degree of the interdependence between
the
actions. United States v. Macchia, 35 F.3d 662, 667 (2d Cir. 1994); United
States v. Korfant, 771
F.2d 660, 662 (2d Cir. 1985)." 140 Wash. 2d at 266.

After this recitation of factors, the Bobic court concluded that Bobic and co-
defendant
Stepchuk

"participated in a criminal enterprise, which included stealing, stripping, repurchasing,
and reselling
stolen vehicles with an obvious intent to further the goals of their criminal conspiracy. A
single
agreement to commit a series of crimes by the same conspirators was present here as each crime
was
only one step in the advancement of the scheme as a whole. [Citation omitted.] Thus in
light of the
statutory direction and the facts of this case, we hold Bobic and Stepchuk committed only one
violation of the conspiracy statute."(Emphasis added.) 140 Wash. 2d
at 266-67.

The court vacated two of the three conspiracy convictions and remanded, presumably for
resentencing.

As mentioned, Bobic follows the same analytical path as established by this
court in
Schoonover, as modified because of the United States Supreme Court's earlier
conspiracy decision
in Braverman, and as impliedly followed in Mincey and
Wilkins.

Bobic does not indicate whether the car theft conspiracy arose out of one
single conversation,
or as a result of a later conversation (or conversations) as in the instant case. We consider this
but
one factor, however, in the calculus. Indeed, the 8th Circuit looks at the totality of the
circumstances
to determine whether a single conspiracy or multiple conspiracies exist. United States v.
Rounsvall,
115 F.3d 561, 564 (8th Cir. 1997). This includes "the nature of the activities involved, the
location
where the alleged events of the conspiracy took place, the identity of the conspirators involved,
and
the time frame in which the acts occurred." United States v. Bascope-Zurita, 68 F.3d
1057, 1061
(8th Cir. 1995). Most of the other circuits have also adopted a multi-factor analysis, employing
many identical or similar factors. See Theis, The Double Jeopardy Defense and Multiple
Prosecutions for Conspiracy, 49 SMU L. Rev. 269, 299 n.159 (1996) (listing examples).

Here, the jury found Pham guilty of both conspiracies: to commit aggravated
burglary and
kidnapping. Based upon Pham's statement to Falletti, the cutting up the T-shirt to use for tying
up
the family was Pham's idea; it apparently did not occur to him until the perpetrators –
Pham and the
Nguyen brothers – were sitting outside of the victims' Garden City home shortly before
they entered
to commit their planned aggravated burglary. Pham's statement to Falletti also established that
Nam
then performed the cutting in the car shortly before they entered the home.

In applying the Korfant factors identified in Bobic to the instant
case, we observe Pham's
statement establishes that in both alleged conspiracies the participants were identical and that the
times and locations substantially overlapped. See United State v. Korfant, 771 F.2d
660, 662 (2d
Cir. 1985). The curbside idea and shirt-cutting, as well as entry into the home and the binding of
family members, additionally establish that in both purported conspiracies the operations were
the
same and they shared some of the overt acts, i.e., acts which eventually helped
accomplish both the
aggravated burglary and the kidnapping. We also observe that the general objectives of both
alleged
conspiracies were the same, i.e., to steal money. Indeed, Pham repeatedly told
Falletti that their only
purpose was to steal money.

Finally, we also note the strong presence of an additional Korfant factor: the
high "degree of
the interdependence between the actions." 771 F.2d at 662. Or, as determined by the
Bobic court,
"A single agreement to commit a series of crimes by the same conspirators was present here
as each
crime was only one step in the advancement of the scheme as a whole." (Emphasis
added.) 140
Wash. 2d at 266. In short, the idea to bind the victims and the actual cutting of the shirt into
strips
were merely to effectuate the object of the conspiracy, i.e., to facilitate the intruders
in their planned
burglary of a home early in the morning of a workday when the family – personally
known to Nam
Nguyen – would assuredly be present.

We therefore conclude that the two conspiracy convictions are multiplicitous because
there
was only a single continuing conspiracy, i.e., whose object was to rob the Nguyen
family in their
home. We reverse the conviction of conspiracy to commit kidnapping and vacate its sentence.
We
remand for resentencing on the conviction of conspiracy to commit aggravated burglary.

Pham also argues that the charges of felony murder, based upon the underlying felony of
aggravated burglary, and aggravated kidnapping were multiplicitous because the same act of
force,
i.e., "the fatal gunshot" was the aggravating factor supporting both convictions.

In response, the State argues that in State v. Grissom, 251 Kan. 851, 840 P.2d
1142 (1992),
the court rejected as a matter of law the defendant's argument that his aggravated kidnapping
conviction was multiplicitous with the first-degree murder conviction.

The resolution of this issue – where Pham received multiple convictions of
different statutes
– is controlled by the analysis in State v. Schoonover. There we stated that
"the test to determine
whether charges in a complaint or information under different statutes are multiplicitous is
whether
each offense requires proof of an element not necessary to prove the other offense; if so, the
charges
stemming from a single act are not multiplicitous." 281 Kan. at ___. Because aggravated
burglary
and aggravated kidnapping each require proof of an element not necessary to prove the other (see
K.S.A. 21- 3716 and 21-3421), one gunshot may serve as the aggravating factor in both the
aggravated burglary (the underlying felony for the felony-murder charge) as well as the
aggravated
kidnapping.

On a related issue, Schoonover also recognized that a legislature can
authorize cumulative
punishments under felony-murder and underlying felony statutes. We concluded that through
K.S.A.
2005 Supp. 21-3436, the inherently dangerous felony statute, "the legislature stated its intent as
to
when cumulative punishments can be imposed." 281 Kan. at ___. Because K.S.A. 2005 Supp.
21-3436(a)(10) lists aggravated burglary as an inherently dangerous felony, Pham can be
punished
cumulatively for felony murder and aggravated burglary as the underlying felony. See,
e.g., State
v. Dunn, 243 Kan. 414, 758 P.2d 718 (1988) (convictions for felony murder and
underlying offenses
of aggravated robbery and aggravated kidnapping are constitutionally permissible).

Accordingly, Pham's convictions of aggravated kidnapping and of felony murder based
upon
the underlying felony of aggravated burglary are not multiplicitous.

Issue 7: Did the district court err in denying Pham's request for jury instructions on
attempted
aggravated kidnapping and attempted kidnapping?

Pham requested jury instructions for attempted aggravated kidnapping and five counts of
attempted kidnapping as lesser included crimes of aggravated kidnapping and five counts of
kidnapping. The district court denied the request, noting that the facts indicate that Pham was
either
guilty of kidnapping and aggravated kidnapping, or he was guilty of nothing at all; there was no
evidence reasonably supporting any lesser included offenses, including attempts. It stated:

"[T]hree men came into their home with guns drawn. The people in the home were
collected from
various parts of the home, made to lie down in one location and had their hands tied. One of the
men
told another to shoot them if they moved. One of the victims started to move or somehow or
other
made some movement. Two shots were fired. The victim died as a result of the two gunshot
wounds."

On appeal Pham only argues that the jury could have found him guilty of attempted
aggravated kidnapping and attempted kidnapping because all six family members were able to
free
themselves from their bonds.

Our standard of review is well known.

"When a defendant has requested a lesser included instruction at trial, the standard
of review
for failing to so instruct is whether the evidence, when viewed in the light most favorable to the
defendant, supported the instruction. The instruction need not have been given if the evidence
would
not have permitted a rational factfinder to find the defendant guilty beyond a reasonable doubt of
the
lesser included offense." State v. Jones, 279 Kan. 395, Syl. ¶ 1, 109 P.3d
1158 (2005).

We agree with the district court. The uncontroverted evidence demonstrates that the
crimes
of kidnapping and aggravated kidnapping were completed before Pham and his fellow gunmen
fled
the Nguyen house. See K.S.A. 21-3420 (e.g., kidnapping is the confining by force or
threat with
intent to hold a person to facilitate the commission of a crime) and K.S.A. 21-3421 (aggravated
kidnapping is when bodily harm is inflicted upon the person kidnapped).

As for Pham's specific contention that the crimes fell short of completion because the
family
members were able to free themselves, we observe that under Kansas law a victim's ability to
escape
does not mean that the act of kidnapping did not occur. In State v. Jackson, 238
Kan. 793, 800, 714
P.2d 1368 (1986), the defendant argued that the evidence of aggravated kidnapping showed only
an
attempt because he lacked sufficient control over the victim, i.e., he was not
successful in getting the
victim locked inside the trunk of his car. This court stated:

"The victim in the instant case was twice dragged by the appellant from inside the
stables
to the appellant's car, which was backed up to the door outside. While the appellant was not
successful in getting her completely inside the trunk, it is clear she was under his control. The
fact
that the victim was able to escape does not prevent the appellant's conviction for aggravated
kidnapping." 238 Kan. at 802.

As a result, the court also rejected defendant's argument that the trial court erred in failing
to instruct on attempted kidnapping. 238 Kan. at 803. See also State v. Little, 26
Kan. App. 2d 713,
718, 994 P.2d 645 (2000) (rejecting defendant's argument that because he did not do a very good
job
of binding the hands of the victim who was able to quickly escape from her bonds, he was
entitled
to a lesser included offense instruction to aggravated kidnapping and kidnapping).

The district court's refusal to instruct on lesser included offenses to aggravated
kidnapping
and kidnapping was not error.

Issue 8: Was the sentence excessive?

Pham argues that his sentence of life imprisonment followed by 1,306 months was an
abuse
of the district court's discretion and oppressive because the court imposed the maximum sentence
for each conviction and ordered that they be served consecutively. He acknowledges that the
district
court had the authority to sentence him in this way. The State responds that Pham's sentence did
not
depart from the presumptive sentences and, under State v. Flores, 268 Kan. 657, 999
P.2d 919
(2000), Pham does not raise jurisdictional grounds sufficient for appeal.

We agree with the State. There is no departure from the presumptive sentences. And in
Flores, 268 Kan. 657, this court squarely addressed Pham's issue, stating: "As to
crimes committed
on or after July 1, 1995, claims of partiality, prejudice, oppression, or corrupt motive do not raise
jurisdictional grounds sufficient to allow an appeal of a presumptive sentence." 268 Kan. at 659.
See K.S.A. 21-4721(e)(1).

The judgment of the district court is affirmed in part and reversed in part:

1. Reversed and remanded for resentencing on a conviction of one count of
aggravated robbery; the remaining convictions on five counts of aggravated robbery
are reversed and their accompanying sentences vacated.

2. Reversed and remanded for resentencing on a conviction of conspiracy to commit
aggravated burglary; the conviction for conspiracy to commit kidnapping is reversed
and its accompanying sentence vacated.